Citation Nr: 1602590
Decision Date: 01/28/16 Archive Date: 02/05/16
DOCKET NO. 11 28-149 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUES
1. Entitlement to service connection for an acquired psychiatric disability, for accrued benefits purposes.
2. Entitlement to service connection for bilateral hearing loss, for accrued benefits purposes.
3. Entitlement to service connection for a lung disorder, for accrued benefits purposes.
4. Entitlement to service connection for the cause of the Veteran's death.
5. Entitlement to an initial compensation rating in excess of 10 percent for the residuals of a cerebral vascular accident, for accrued benefits purposes.
6. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU), for accrued benefits purposes.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
N. Holtz, Counsel
INTRODUCTION
The Veteran served on active duty from August 1971 to July 1975. The Veteran died in September 2007, during the pendency of this appeal. The Appellant is his surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.
The Appellant testified at a May 2015 videoconference hearing before the undersigned. A transcript of those proceedings is of record.
The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. At the May 2015 videoconference hearing, the Appellant stated that she wished to withdraw the appeal of the issue of entitlement to service connection for an acquired psychiatric disorder.
2. There is no evidence of record that the Veteran had an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test were less than 94 percent, during the period prior to his death.
3. The evidence is at least in equipoise that the Veteran's adenocarcinoma of the lung was related to his in-service exposure to asbestos.
4. The Veteran's death was due to his service-connected lung cancer.
5. The Veteran was granted compensation under 38 U.S.C.A. § 1151 (West 2014) effective February 9, 2005, for the residuals of a March 2003 CVA.
6. Following the Veteran's March 2003 CVA, he suffered from a mild left-sided facial droop that was etiologically related to the accident.
7. Following the Veteran's March 2003 CVA, he suffered from a moderate left-sided facial numbness that was etiologically related to the accident.
8. Following the Veteran's March 2003 CVA, he suffered from a mild tongue impairment, which caused occasional difficulty in using the correct words during speech, an impairment that was etiologically related to the accident.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a substantive appeal of entitlement to service connection for an acquired psychiatric disability, for accrued purposes, have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015).
2. The Veteran did not have a hearing loss disability for VA purposes. 38 U.S.C.A. §§ 1110, 1131, 1112, 1137, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385, 3.1000 (2015).
3. Service connection for lung cancer is warranted, on an accrued basis. 38 U.S.C.A. §§ 1110, 1131, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3.1000.
4. The criteria for entitlement to service connection for the cause of the Veteran's death are met. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2015).
5. For the six months following the effective date of the grant of compensation under 38 U.S.C.A. § 1151 for CVA residuals, the criteria for a 100 percent rating for CVA residuals are met, on an accrued basis. 38 U.S.C.A. §§ 1151, 1155, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.1000, 4.1, 4.2, 4.7, 4.10, 4.124a, Diagnostic Code 8009 (2015).
6. Beginning six months following the effective date of the grant of compensation under 38 U.S.C.A. § 1151 for CVA residuals, the criteria for a 10 percent rating for a moderate left-sided facial droop are met, on an accrued basis. 38 U.S.C.A. §§ 1151, 1155, 5107, 5121; 38 C.F.R. §§ 3.1000, 4.1, 4.2, 4.10, 4.20, 4.124a, Diagnostic Codes 8009, 8207 (2015).
7. Beginning six months following the effective date of the grant of compensation under 38 U.S.C.A. § 1151 for CVA residuals, the criteria for a 10 percent rating for moderate left-sided facial numbness are met, on an accrued basis. 38 U.S.C.A. §§ 1151, 1155, 5107, 5121; 38 C.F.R. §§ 3.1000, 4.1, 4.2, 4.10, 4.20, 4.124a, Diagnostic Codes 8009, 8205 (2015).
8. Beginning six months following the effective date of the grant of compensation under 38 U.S.C.A. § 1151 for CVA residuals, the criteria for a 10 percent rating for a moderate speech difficulty are met, on an accrued basis. 38 U.S.C.A. §§ 1151, 1155, 5107, 5121; 38 C.F.R. §§ 3.1000, 4.1, 4.2, 4.10, 4.20, 4.124a, Diagnostic Codes 8009, 8212 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Appellant seeks service connection for the cause of the Veteran's death, as well as entitlement to other benefits on an accrued basis. For the reasons discussed herein, the Board is granting the Appellant's service connection claim for lung cancer, and therefore, also her claim for service connection for the cause of the Veteran's death. The Board has also determined that additional accrued benefits are warranted with respect to the appeal for the appropriate rating for the residuals of a cerebral vascular accident. Before addressing those issues, however, the Board will first address Appellant's withdrawn psychiatric disability claim, and the claim for bilateral hearing loss, which must be denied.
Entitlement to service connection for an acquired psychiatric disability
Appellant withdrew her claim for service connection for an acquired psychiatric disability for accrued purposes during her May 2015 hearing before the undersigned. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Here, there remain no allegations of errors of fact or law for appellate consideration of this issue. Accordingly, the Board does not have jurisdiction to review the appeal of the issue and it is dismissed without prejudice.
Entitlement to service connection for bilateral hearing loss
Appellant's claim for service connection for bilateral hearing loss is on an accrued benefits basis. Only evidence contained in the claims file at the time of the Veteran's death may be considered when reviewing a claim for accrued benefits. 38 C.F.R. § 3.1000(a). This includes service department and VA treatment records which are considered to be constructively in the claims file at the date of death, even though they may not physically be in the file until after that date. 38 C.F.R. § 3.1000(d)(4). Thus, after the Veteran's death the appellant cannot furnish, and VA cannot develop additional evidence that might better substantiate the claim of entitlement to accrued benefits. As such, discussion of the duty to notify and assist under the Veterans Claims Assistance Act of 2000 is not necessary here. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).
In order for VA to grant a claim for service connection, it must be demonstrated that there is a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).
Unfortunately, the record does not contain competent evidence of a hearing loss disability for VA purposes, and as such, the claim for service connection for bilateral hearing loss, for accrued benefits purposes, must be denied. The Board recognizes the Veteran's submission of an October 2005 VA treatment note indicating that the Veteran has a hearing problem, related to "slight hearing loss both ears during the service." That note is consistent with the Veteran's 1975 separation examination, which demonstrated limited hearing loss (chart demonstrates decibel thresholds at various Hertz levels):
HERTZ
1000
2000
3000
4000
RIGHT
15
15
10
5
LEFT
20
30
15
15
For VA purposes, a hearing loss disability requires evidence that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or that auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
Here, there is no auditory threshold of record following the Veteran's separation from service. While the Board finds the Veteran's assertions concerning his hearing loss to be credible, and VA treatment records are consistent with his assertions, applicable regulations preclude a finding of a current hearing loss disability without supporting audiometric data. Id. Existing evidence is insufficient to demonstrate that the Veteran's hearing loss met the criteria to be a disability for VA purposes at any time from the date of his claim until his death in 2007. As such, service connection cannot be granted. Holton, 557 F.3d at 1366.
Entitlement to service connection for a lung disability
With respect to the issue of the Veteran's lung disability, the Board observes that the question presented is primarily one of the nature of the lung cancer that the Veteran suffered from prior to his death. It is undisputed that he had lung cancer, and that it was the primary factor in his death. It is also undisputed that he had significant asbestos exposure in service. Ultimately, if the cancer was asbestos-related, then service connection is warranted.
A private pulmonary function test from August 2003 noted a history of asbestosis, but did not provide any evidence in support of the diagnosis. In May 2007, D.D., a VA physician, reviewed a "high resolution CT exam of the lung" and opined that the test "did not suggest any asbestos residual."
A June 2007 opinion from Dr. C.B., also a VA physician, indicated that the Veteran's lung disease was due to his history of asbestos exposure. Following a thorough review of the tests the Veteran underwent in 2007, Dr. C.B. opined that "[b]ased upon [his] occupational history (provided by the patient), chest x-ray, CT scan results and histologic diagnosis, it is my opinion that these findings are consistent with the diagnosis of Adenocarcinoma of the lung which in my opinion was caused in whole or in part by his exposure to asbestos and cigarette smoking." The Board acknowledges that this opinion was not received until October 2007, following the Veteran's death. While accrued claims generally can only be based on evidence of record at the time of the Veteran's death, "evidence in the file at the date of death" means evidence "in VA's possession on or before the date of the [Veteran's] death." 38 C.F.R. § 3.1000(d)(3). The fact that such evidence is not in the claims file is not dispositive, as long as it was in VA's possession. In the case of the June 2007 opinion from a VA physician, that document was in VA's possession from the moment of its creation due to the employment of its author. As such, it is properly considered here.
Also of record is a March 2011 medical opinion that VA obtained in conjunction with Appellant's claim for service connection for the cause of the Veteran's death. Such evidence, obtained after the Veteran's death, is not for consideration in determining whether his lung cancer was related to his in-service asbestos exposure. 38 C.F.R. § 3.1000(a).
The Board finds the May 2007 (negative) and June 2007 (positive) opinions to be most probative of the question of whether the Veteran's lung disease was asbestos-related. Both opinions cited to specific tests as a rationale in support. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a probative medical opinion must be factually accurate, fully articulated, and based on sound reasoning). Further, there is nothing in the May 2007 negative opinion that would suggest that it should be provided more weight than the June 2007 positive opinion. In fact, the June 2007 opinion was more thorough in its review of the applicable evidence. At minimum, therefore, the Board finds that the evidence is in equipoise concerning the nature and etiology of the Veteran's lung disease. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary is required to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board thus finds that it is at least as likely as not that the Veteran's lung disease was asbestos-related. With evidence of a (then-) current disability, an in-service injury, and an etiological relationship between the two, service connection for the Veteran's lung cancer is warranted. 38 C.F.R. § 3.303.
Entitlement to service connection for the cause of the Veteran's death
Service connection for the cause of death is warranted where the evidence establishes that a service-connected disability is the principal or a contributory cause of death. 38 C.F.R. § 3.312. The Veteran's terminal records indicate that he had a diagnosis of lung cancer and mesothelioma. (In light of the previous discussion of whether the Veteran's lung cancer warranted service connection, the Board notes that these private medical records were not in VA's possession at the time of his death; as service connection for the cause of death is not an accrued-basis claim, they can be considered here). His death certificate lists death as due to respiratory failure, a consequence of mesothelioma.
The Board finds that any discrepancy in the terminal records between ascribing the cause of death to mesothelioma rather than the service-connected lung cancer is not of consequence to the determination as to whether the Veteran's death is to be considered service-connected. Initially, it is worth noting that there is no supporting evidence for the mesothelioma diagnosis. It appears to be based solely on the Veteran-supplied medical history. As such, and despite the death certificate, the Board is not certain that the Veteran actually had mesothelioma prior to his death. Nevertheless, the Board takes judicial notice of the fact that mesothelioma is an asbestos-related cancer of the pleura, which lines the lungs. To the extent that he developed mesothelioma prior to his death, the evidence relating his lung cancer to service also relates any mesothelioma diagnosis to service, which is the only time during which the evidence suggests that he was exposed to asbestos.
Included in the terminal records, a September 30, 2007 Expiration Form, completed by a Registered Nurse at St. Anthony Medical Center, indicates that he was not a candidate for organ or tissue donation because he suffered from "mesothelioma/ lung cancer." For purposes of adjudicating the appeal, the Board finds that the evidence indisputably demonstrates that his death was due to lung cancer, regardless of whether that cancer was identified as a mesothelioma. In light of the fact that the Board has granted service connection for lung cancer, service connection for the cause of the Veteran's death is warranted. Id.
Entitlement to an increased initial rating for cerebral vascular accident (CVA) residuals
In its July 2006 rating decision, the Regional Office granted entitlement to compensation for CVA residuals, claimed as kidneys, memory loss, left eye problems, and numbness on the left side of the face, and assigned a 10 percent rating. The initial 10 percent rating was granted on the basis that the Veteran suffered additional disability due to inadequate care by VA. That fact has no impact on the compensation that is to be paid to the beneficiary, however. Such compensation is to be paid "in the same manner as if such additional disability . . . were service-connected." 38 U.S.C.A. § 1151.
Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).
With respect to CVA residuals, such disabilities are to be rated under 38 C.F.R. § 4.124a, Diagnostic Code 8009, for "Brain, vessels, hemorrhage from." Under this diagnostic code, the vascular code is to be rated at 100 percent disabling for six months. Thereafter, residuals are to be rated under the appropriate diagnostic code, with a minimum rating of 10 percent under Diagnostic Code 8009.
The appeal presents a question of law for which there is essentially no guidance. The Veteran's CVA occurred in March 2003. He did not file his claim until February 2005, nearly two years later. The RO assigned an effective date for compensation of February 9, 2005, by applying 38 C.F.R. § 3.400; that date is not in dispute here. While there is no basis provided by the RO for only assigning an initial 10 percent rating (rather than assigning a 100 percent rating for the first six months as indicated by Diagnostic Code 8009), it is reasonable to assume that the RO's interpretation of Diagnostic Code 8009's language - "for 6 months" - to mean six months from the CVA itself. The diagnostic code, however, does not say that the rating applies for only the first six months following the CVA. Rather, it simply indicates that a 100 percent rating is to be assigned "for six months." In situations where applicable regulations may provide for two different evaluations of a disability, "the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating." 38 C.F.R. § 4.7. In this case, the disability picture is straightforward: at minimum, it consists of vascular residuals. Diagnostic Code 8009 provides no indication that the disability picture during the first six months must be of a certain severity; a 100 percent rating applies regardless of the severity of the residuals. Further, because there is no indication in Diagnostic Code 8009 that it applies only from the first six months after the accident, and no higher legal authority has interpreted the code in that fashion, the Board is obligated to construe the code in a way that is most beneficial to the Appellant. As such, the Board concludes that a 100 percent rating for residuals of CVA is warranted for the first six months following the grant of compensation.
That determination does not end the inquiry, however. The Board must consider the appropriate rating for the period following the initial six months. As noted, a 10 percent minimum rating is warranted, but ratings under other diagnostic codes may be appropriate. The Board will consider whether there is a sufficient evidentiary basis for any appreciable residuals of the CVA to assign higher (or separate) ratings than the 10 percent rating under Diagnostic Code 8009. The Veteran has asserted (or the evidence of record suggests) that his CVA produced impairment in renal function, erectile dysfunction, worsened eyesight, memory loss, facial droop, impaired facial sensation, and difficulty in choosing the correct words for purposes of speech. The Board will consider each of these potential CVA residuals in turn.
* Renal Function
The Veteran has asserted that his renal function was affected by his CVA. The July 2006 rating decision that granted compensation for CVA residuals did not make a finding that any renal impairment was related to the CVA. As such, the matter has not yet been adjudicated; the Board must consider whether any renal impairment is the result of the Veteran's 2003 CVA, and as such, what, if any, rating must be applied for those residuals. 38 C.F.R. § 4.124a, Diagnostic Code 8009.
In a February 2005 handwritten note on a copy of a pre-CVA renal ultrasound report, the Veteran indicated that it was only after the "over-dose of clonidine on 3/7/03 that [his] right kidney artery collapsed." In a May 2007 statement, he claimed that his stroke caused his urinary canal to become obstructed, requiring a stent to be placed to allow blood flow. The Board recognizes the apparent timing of the changes in renal function, according to the Veteran's lay statements. Neither he nor the Board, however, is competent to address the complex medical question of whether there is an etiological relationship between his CVA and ensuing renal function. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (providing that a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation).
A May 2006 genitourinary examination report noted that after a dramatic blood pressure rise in 2003, studies were performed which demonstrated right renal artery stenosis. In April 2004, the Veteran was provided a renal artery stent, which allowed greater control of his hypertension. The examiner opined, without any rationale in support, that the Veteran's renal artery stenosis was not caused by, or made worse by, VA medical or surgical treatment in 2003. The opinion, without any support provided, is inadequate for purposes of determining etiology of the Veteran's renal symptomatology. See Nieves-Rodriguez, 22 Vet. App. at 302.
The Board again must note that, under 38 C.F.R. § 3.1000, consideration of whether any renal symptomatology constitutes residuals of the CVA is limited to the evidence available at the time of the Veteran's death. Unfortunately, there simply is not adequate (i.e., at minimum, the evidence must be in equipoise), competent evidence linking the Veteran's impaired renal function to his CVA. Were the Veteran still alive, additional development could have been possible via a remand to the AOJ of jurisdiction. That cannot occur here, however, and therefore the Board cannot assign a separate rating for renal impairment as a result of the Veteran's CVA. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53.
* Erectile Dysfunction
In August 2004, the Veteran indicated that he suffered from erectile dysfunction ever since his CVA. He was treated with Viagra. The evidentiary record fails to indicate an etiology of the Veteran's erectile dysfunction, however, and thus the Board does not have a basis for determining that a separate rating can be assigned for this disability (or, for that matter, special monthly compensation under 38 U.S.C.A. § 1114(k) (2015)).
* Left Eye Vision Loss
The Veteran asserts that his vision was impaired following his CVA. A May 2003 treatment note indicated that he complained of blurred vision in his left eye, which would clear up after a couple of minutes. In a March 2007 statement, he indicated that the vessels in his left eye were damaged at the time of the stroke, and that his eye did not close when he slept. Each night he would have to apply a salve to his eye to prevent the eye from drying out, and he was troubled with headaches.
Although there is a May 2006 handwritten VA examination report of record, this document fails to provide a clear opinion on whether any eye symptomatology is related to his CVA.
In an August 2006 statement, the Veteran indicated that he received a doctor at Hines VA eye clinic wanted him to have an MRI of the brain out of concern that there was damage going to the blood vessels of the eye, related to his CVA.
Unfortunately, as with the issue of the Veteran's renal function, there simply is not enough evidence of record to determine whether any visual impairment constituted a residual of the March 2003 CVA. As the Board is precluded from developing any additional evidence in this regard, and the evidence is not at least in equipoise, the Board cannot grant additional benefits on this basis. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53.
* Memory Loss
A May 2006 examination report indicated that the Veteran had memory defects in the immediate aftermath of the CVA, but did not detail what those defects were, or their severity. Further, according to the report, as of May 2006, there was no indication that the memory impairment continued.
Under applicable accrued benefits law, there is simply not enough evidence of record to determine whether memory loss existed at any time during the period for which compensation was granted. Unfortunately, the record does not provide a basis for granting benefits based on memory loss.
* Facial Droop (Bell's Palsy), Loss of Facial Sensation, Speech Difficulties
There is evidence that a left-sided facial droop, loss of facial sensation on the left side, and some speech difficulties occurred as a result of the March 2003 CVA. As discussed below, the symptoms were noted to be present more than three years after the accident, and at no point in the record is there documentation that they resolved prior to the Veteran's death.
In May 2003, a neurological consultation note indicated that the Veteran had "word finding difficulty" since his stroke. Since the accident, "words don't want to come out." The examiner noted that the left side of his face did not move as much. A June 2003 MRI report indicated that there were neurological deficits with respect to the fifth cranial nerve (described as decreased sensitivity to the left side of the face), the eighth cranial nerve (mild left-sided droop), and the twelfth cranial nerve (mild tongue impairment).
In April 2006, three years after the Veteran's CVA, the Veteran was provided a neurological examination. At that time, the examiner noted residual numbness to the left side of the face, left side facial droop, and occasional stuttering. The extremities were within normal limits neurologically. The examiner opined that these symptoms were likely related to his CVA. A May 2006 examination report indicated that the Veteran had occasional difficulty finding the correct words. In a May 2007 statement, the Veteran reported continuing numbness to his face.
Based on the evidence of record, the Board finds that there are discernable CVA residuals that affected the Veteran's facial movement, facial sensation, and ability to speak, and that there is sufficient evidence to assign separate ratings for these disabilities for the period prior to his death.
Concerning the facial droop, 38 C.F.R. § 4.124a, Diagnostic Code 8207 provides for a 10 percent rating for moderate incomplete paralysis of the seventh (facial) cranial nerve. (The Board recognizes that the June 2003 MRI indicated that the 8th nerve was involved, rather than the seventh, but notes that there are no rating criteria that apply specifically to impairment of the eighth nerve; the seventh nerve is the closest applicable rating criteria. See 38 C.F.R. § 4.20 (providing for analogous ratings)). Higher ratings are provided for severe or complete paralysis. According to the note attendant to the rating criteria, the appropriate rating is "[d]ependent upon relative loss of innervation of facial muscles." Per the accompanying note, ratings are to be assigned dependent upon the relative degree of sensory manifestation or motor loss.
The Board observes that no examiner described the Veteran's facial droop as moderate, severe, or complete. The June 2003 examiner described it only as "mild." Nevertheless, there is evidence that the left-sided facial muscles did not move as much as those on the right, and that this was directly related to the CVA. Based on the very limited evidence of record, the Board finds that a 10 percent rating for "moderate paralysis" is warranted under Diagnostic Code 8207. The Board can find no evidence of record that warrants a rating for "severe" residuals.
With respect to facial numbness, the record contains even less evidence that describes the facial droop. The numbness was present, however, both according to neurological examiners and the Veteran, throughout the remainder of his life.
The applicable rating criteria for facial numbness is found in 38 C.F.R. § 4.124a, Diagnostic Code 8205, which addresses the fifth (trigeminal) cranial nerve, which provides humans with sensation in the face. As with Diagnostic Code 8207, the rating criteria provide ratings for moderate incomplete paralysis (10 percent), severe incomplete paralysis (30 percent), and complete paralysis (50 percent).
In light of the very limited evidence of record, the Board finds no basis for granting more than a 10 percent rating for "moderate incomplete paralysis." The neurological residuals are described solely as numbness; no record suggests any severe neurological residuals of the facial nerve. As such, the Board will assign a 10 percent rating for the period through to the time of the Veteran's death.
Finally, the Board notes that the record documents the Veteran's speech impairment following his CVA. Specifically, the evidence notes that the Veteran had occasional difficulty finding the right words.
Under Diagnostic Code 8512, which applies to the twelfth (hypoglossal) cranial nerve, a 10 percent rating is assigned for moderate incomplete paralysis, a 30 percent rating is assigned for severe incomplete paralysis, and a 50 percent rating is assigned for complete paralysis. These ratings are to be assigned dependent upon the loss of motor function of the tongue, according to the note that partners the rating criteria.
Considering that the Veteran's disability is described as "occasional difficulty," and according to the June 2003 MRI report, "mi[l]d", the Board again can find no evidence of more than "moderate" incomplete paralysis of the twelfth nerve. A 10 percent rating is warranted under Diagnostic Code 8512.
ORDER
The claim of entitlement to service connection for an acquired psychiatric disorder is dismissed.
Entitlement to service connection for bilateral hearing loss is denied.
Entitlement to service connection for lung cancer is granted, for accrued benefits purposes.
Entitlement to service connection for the cause of the Veteran's death is granted.
An initial rating of 100 percent for the residuals of a cerebral vascular accident is granted for the period of six months following the effective date of the grant of compensation for the disability under 38 U.S.C.A. § 1151, for accrued benefits purposes, subject to the laws and regulations governing the payment of monetary benefits.
An initial rating of 10 percent for a moderate left-sided facial droop is granted for the period beginning six months after the effective date of the grant of compensation for the CVA disability under 38 U.S.C.A. § 1151, for accrued benefits purposes, subject to the laws and regulations governing the payment of monetary benefits.
An initial rating of 10 percent for moderate left-sided facial numbness is granted for the period beginning six months after the effective date of the grant of compensation for the CVA disability under 38 U.S.C.A. § 1151, for accrued benefits purposes, subject to the laws and regulations governing the payment of monetary benefits.
An initial rating of 10 percent for a moderate speech difficulty is granted for the period beginning six months after the effective date of the grant of compensation for the CVA disability under 38 U.S.C.A. § 1151, for accrued benefits purposes, subject to the laws and regulations governing the payment of monetary benefits.
REMAND
In May 2007, the Veteran stated that he had not had any income since at least 2006. As the Veteran's statement suggests that he was unemployable in the final years leading to his death, the issue of entitlement to a TDIU is raised under Rice v. Shinseki, 22 Vet. App. 447 (2009) and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this regard, the Board notes that it has granted service connection (on an accrued basis) for lung cancer, and assigned separate accrued ratings for the residuals of his March 2003 CVA. Presently, however, and until a rating is assigned for lung cancer, the combined rating is not sufficient for the Board to consider entitlement to TDIU in the first instance. Adjudication of this matter by the AOJ is required. (The Board notes that no development may occur, under the restrictions that apply to claims for accrued benefits. 38 C.F.R. § 3.1000.)
The Board also observes that, because questions remain as to the rating to be assigned for the Veteran's lung cancer for the period prior to his death, the Board is unable to determine whether the combined effect that his disabilities had are adequately addressed by his disability rating. See Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014) (holding that the "plain language of § 3.321(b)(1) provides for referral for extraschedular consideration based on the collective impact of multiple disabilities"). As such, the Board is unable to address at this time the question of whether the Veteran's disability picture resulted in marked interference with employment such that an extraschedular rating might be warranted. 38 C.F.R. § 3.321(b)(1) (2015); Thun v. Peake, 22 Vet. App. 111 (2008).
Accordingly, the case is REMANDED for the following action:
1. Assign the appropriate rating (on an accrued basis) for the Veteran's service-connected lung cancer.
2. Then, determine whether referral of the issue of entitlement to an extraschedular rating for the Veteran's lung cancer and/or CVA residuals to the Under Secretary for Benefits or the Director of Compensation and Pension for consideration is warranted on an accrued basis, (when the service-connected disabilities are considered together) pursuant to 38 C.F.R. § 3.321(b). If referral is warranted, the AOJ should take appropriate steps before, if necessary, the preparation of a supplemental statement of the case.
3. Then, adjudicate the TDIU claim. If the benefits sought on appeal are not granted to the Appellant's satisfaction, the Appellant and the representative should be furnished a supplemental statement of the case addressing both remanded issues, and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
Simone Krembs
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs